Monday, 18 July 2016

Battistelli, the EPO President, discusses two possible scenario's for the future of the unitary patent after the UK voted to leave the EU in the Brexit referendum, in his Blog 'The future of the Unitary Patent package'.

According to Battistelli, "In the best case scenario, the UK could go ahead as soon as possible
with the ratification of the UPC Agreement. This would allow the UK
afterwards, in its EU exit negotiations, to obtain its continuous
participation both in the Unified Patent Court and the Unitary Patent." This option follows the scenario proposed by Hoyng, that we discussed earlier on this Blog. Eplit, the European patent litigator association, has sent a letter to Lucy Neville-Rolfe, Minister for Intellectual Property, urging here to take this route and ratify the Agreement.

The advantages are clear, the unitary patent can go ahead as planned, and the UK buys time at least until their formal exit out of the EU on how to proceed. In the meantime a solution can be found that finds a place for the UK in the unitary patent. Either through a creative interpretation of the Agreement on a unified patent court (namely, you should be a EU member to become a participant not not to stay participant) or in the form of an amendment or side-agreement. The latter options would have my preference, as they give more legal certainty.

In an article at Out-Law, Deborah Bould considers this approach unlikely. "It seems politically unrealistic to suggest that the UK ratifies the
UPC Agreement now, to help get the unitary patent system off the ground,
and then tries to negotiate to stay in as part of the UK’s exit terms,"
Bould said. At first glance, it does indeed seems illogical to ratify an agreement that further limits national sovereignty in favor of a pan-European court just after a brexit vote. On the other hand, a UK in the unitary patent fits nicely in the 'soft brexit' model, in which a close relationship with the rest of the EU is maintained.

The alternative considered by Battistelli is to amend the Agreement and continue without the UK. This would give a unitary patent in which the UK is absent, but which still has countries like Germany, France, Italy and the Netherlands, that hopefully will make this 'unitary patent light' sufficiently attractive to be a viable option.

Bould offers yet a further alternative in which the Agreement on a unified patent court is renegotiated and opened up to all EPC member states who are not EU states. I presume Battisteli's option would be easier to obtain, but Bould's suggestion has the advantage that states like Norway, Switzerland and Turkey could also join the unitary patent. I'm not sure though if it is necessary to codify access to the unitary patent to all EPO states. If the UK can be included in the unitary patent through a kind of extension agreement, then I do not see why a similar agreement can't be made with other EPO member states.

In any case, any tampering with the Agreement would take time, and delay the unitary patent, but that is a reality that seems inevitable in any scenario.

Friday, 15 July 2016

With all the commotion surrounding the brexit we neglected news of the countries that made progress towards ratification. First of all, Bulgaria has deposited its instrument of ratification and is the tenth state to do so.

In the Netherlands the parliament has accepted the Agreement on a unified patent court. The Netherlands can now proceed to deposit their instrument of ratification. They have not done so yet.

When the Netherlands completes this final part of their ratification they will be the 11th country. At that point an important milestone will be reached. Only the required countries Germany and the United Kingdom are then sufficient to reach 13 countries and make the unitary patent a reality.

Nevertheless, all eyes are on the United Kingdom. Will they continue to ratify the Agreement even though they voted to leave the EU? I have not yet heard of any positive indication, that the United Kingdom is continuing their ratification process. Feel free to mail me any news about it.